As a result of the shifting legal and commercial context for FWLWA, a lien regime is no longer an appropriate choice for regulating the logging industry. This chapter explores some of the more specific legal issues raised by the Act that would have to be addressed as part of any reform exercise.
A. Determining Who is Entitled to a Lien
It appears that a key reason the current Act is not frequently used is a lack of clarity over its scope. The LCO heard in consultations that workers are sometimes told that the work they do does not fall within the Act. They do not bother filing a lien since most do not have the resources for a court application to determine whether or not they are protected.
There are some inherent difficulties in defining the scope of a forestry worker lien regime. Who should be protected? Loggers are part of a supply chain that results in finished wood products. Each member of the supply chain adds value to the eventual product. It is difficult to set boundaries on the protection to be provided by a lien regime without drawing an arbitrary distinction between loggers and other small businesses contributing to the harvesting process. The scope of a lien regime may also be defined in relation to the functions performed by loggers. In Buchanan, the Court took a liberal approach, holding that the Act should protect all functions involved in “the chain of production from cutting trees to delivering them to the mill”.[154] However, this does not resolve the problem of setting reasonable boundaries on this concept.
Precision in the scope of the Act must be balanced against the value of employing flexible language so as to encompass future logging functions arising from technological advances. In spite of the progressive interpretation adopted in Buchanan, the definitions in the current Act are essentially a close-ended list of specific activities and raw wood products with relatively little room for judicial interpretation.
Another definitional issue raised by the Act is its continued application to logging employees; both the few remaining logging employees directly employed by forest product companies and the employees of logging contractors and subcontractors. Direct employees of forest product companies are clearly covered by the current Act and the issue here, as noted above, is whether a lien remedy should continue to be available given the other statutory wage protections in place. This issue is more complicated in the case of indirect employees, that is, the employees of logging contractors and subcontractors. The language of the Act suggests that these indirect employees are also entitled to assert a lien against the owner of the wood independent of any lien filed by their employer. Should these employee claims be permitted or should these employees be required to look to their direct employer for their wages? Again, the nature of the logging industry makes it difficult to set appropriate boundaries to a forestry worker lien regime.
B. The Subcontractor Problem
A key shortcoming of FWLWA is its failure to accommodate the modern practice of contracting out harvesting operations. Licencees typically hire “stump to dump” contractors who then subcontract out various logging functions such as harvesting, skidding or trucking. These subcontractors may, in turn, hire additional subcontractors to carry out more specialized tasks.
Both contractors and subcontractors contribute value to logs or timber as they move along the supply chain from forest to mill. There is no functional distinction between their economic positions that would justify giving contractors lien protection to the exclusion of subcontractors. Furthermore, unless subcontractors are protected alongside contractors, forest product companies may avoid liability by creating subsidiaries to carry out harvesting operations. This problem has been long recognized by the courts. In 1911, a New Brunswick judge found that a subcontractor was entitled to claim a woodworker lien on the following reasoning:
The act was intended as a protection to workmen who perform labour or services, and in none of its provisions does it differentiate between the case of a woodman working directly for the owner of the lumber, and that of a woodman one stop farther removed, working for a contractor with the owner. To put upon the act any other construction than the learned judge has, would be to defeat entirely the purpose it was intended to serve, i.e., the protection of the wage-earner. For no owner of logs or timber would be likely to voluntarily assume by a direct hiring, the obligation of responsibility for the woodmen’s wages, if by contracting with a third party to get out the logs or timber he could altogether avoid responsibility for those wages, and at the same time have his logs freed from the woodmen’s liens thereon.[155]
Although it seems clear that subcontractors should be included in a forestry worker lien regime, this complicates the regime since there may be several degrees of separation between the licencee and a particular subcontractor. The concern is for the forest product company who pays the general contractor but is, nonetheless, subject to a lien by a subcontractor as a result of the contractor defaulting on its own payments. It is unclear under the existing Act whether subcontractors are entitled to file a lien against an owner with whom they have no contractual relationship. The plain wording of the Act would appear to include subcontractors within its scope. However, an old Supreme Court of Canada decision held otherwise for the very reason that it would be unfair to the owner to expose it to lien claims after having paid the contract price.[156]
The best example of a lien regime operating in a highly fragmented industry is the Construction Lien Act.[157] Subcontractors are protected in the construction industry through an elaborate system of holdbacks. Essentially, the owner holds back 10 per cent of the amount payable to the contractor to cover any subcontractor liens. This holdback system extends throughout the contracting pyramid with subcontractors holding back 10 per cent from sub-subcontractors and so forth. A holdback system is effective in allowing for subcontractor lien claims while limiting the owner’s exposure. However, it is a complex system which requires industry buy-in. This would be difficult and costly to establish in a smaller industry with informal contracting practices such as the logging industry.
C. Identifying the Property to Which the Lien Attaches
Currently a lien under the Act attaches to “logs or timber” which is defined as a list of products including telegraph poles, railroad ties, tan bark, pulpwood, shingle bolts and staves. This definition is clearly outdated. It includes obsolete products such as tan bark and omits new products such as biomass. As with the definition of “labour”, there is little scope for a court to interpret the definition in order to respond to technological change.[158]
Whatever definition is adopted, there is still the problem of ensuring that the property subject to the lien is identifiable to third parties with a potential interest in it. Commercial liens commonly arise in respect of particular articles like vehicles that are unique enough to be identifiable. This is particularly important in respect of non-possessory liens so that the article may be tracked down even after leaving the possession of the lien claimant. Logs or timber are not easily identifiable. Under the current Act, the lien attaches to the specific wood that the logger has worked on. However, logs are typically mingled with other wood making it difficult to differentiate between them. This problem is exacerbated now that wood is processed very quickly. There may be no clear point at which the wood becomes “not wood”. [159]
Closely associated with the problem of identification is the issue of what happens when the wood is processed or sold to a third party. Currently, the Act provides that the lien is enforceable against a third party buyer of wood.[160] As discussed above, this is contrary to modern commercial law norms which prioritize the free transfer of goods.[161]
D. Viability of a Registry System
A registry system providing for third party notice of security interests is a foundational element of the PPSA and has been adopted in most non-possessory commercial lien regimes as will be discussed below. It would be logical for a reformed forestry worker lien regime to make use of the existing PPSR. A particular benefit to the PPSR is that registrations and searches may both be done electronically. This would make it possible for loggers working in northern Ontario to register liens without travelling long distances to the closest Reg